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Country Specific Questions & Answers (2)

While this issue is a concern in many urban and rural settings, there seems to be precious little “how to” information available. What does exist can provide a roadmap, but the details will be dependent on the goal of your project, the current law, and local and national political will.

The most recent research on the topic that I could find comes out of South Africa. I would recommend a book and an article as a good starting place. The book is, UNTITLED: Securing Land Tenure in Urban and Rural South Africa, edited by Donna Hornby, Rosalie Kingwill, Lauren Royston, and Ben Cousins, and published in 2017.

The article is, Land Rights Adjudication: Developing Principles and Processes for ESTA and Labour Tenant Right ’ Holders, and was published in June 2017. The article was written by Dr. Rosalie Kingwill for Association for Rural Advancement (AFRA).

The gist of the idea is this:

• Collect evidence from the ground up to understand the local situation/norms of land use.
• Develop standardized evidentiary principles based on current norms where ‘like units’ can be compared with ‘like units’ across varied tenure landscapes to allow for local variation and diversity.
• Develop a system of adjudication with clear-cut principles against which to test the legality or veracity of individual land rights by authoritative means.

The registry for “off-register” rights could be separate or a part of the main land registry depending on the existing system. Namibia has passed an act designed to create new forms of title to immovable property and to create a register for these forms of title. The system is expected to operate parallel to the existing registration system. Admittedly, including non-ownership rights in an existing registry or creating a new registry will be a slow and difficult process.

Gender Specific Issues

Anytime a census of rights is taken, women are at risk. Women, who use land and depend on it may nonetheless not be considered to have a right to that land. Thus, the evidence collectors will need to be aware that they are collecting information on who has what interest in which land, and that this information should be collected from every adult member in a household, not only the head of household. In addition, a focused effort will be required to ensure that women, as well as men, are provided notice and receive ongoing information and communication throughout the process. Including women often requires separate meetings or other accommodations.

As well, when registering of rights/interests occurs, there is usually a perception of increased value of the land. Where there is a significant power differential between men and women, women can lose their right to use the land, once the value of that land is increased. It will be important to monitor the effect of the information gathering and to communicate with the community about its purpose and the hoped for outcome.

This is a big question, but fortunately, much has been written about gender inequality and land rights in Uganda. There are two documents that I think will be useful. First, is an overview of the law and practice related to women’s land rights—a practice guide— Women’s Land Rights in Uganda and the second is the Ugandan Land Policy.

In brief, the practice guide points out some of the legal issues that continue to limit women’s rights to land (for example a weak inheritance law) and customary law practices that maintain inequality between men and women.

What can be done about it?  Uganda has a very gender positive Land Policy that suggests a complete understanding of the issues facing women. If the Land Policy were to be implemented, gender equality in land rights would be much more likely.

Customary Land (1)

As you can imagine, there are no easy answers to this question, and people will disagree. Here are a few thoughts.

(1) I do think that very often when titling of customary land is initiated by the government and not by the community, the goal is often to get land into the market or to make land easier to acquire (through compulsory acquisition) by the government and by purchasers and lessees. Communities themselves will object to titling of their land if they believe they need to be protected from the government not by the government. If titling is a pre-cursor to customary land entering the market, then I do think there is a real possibility of it being a threat to women’s and men’s rights to their customary land. The threat will be greatest for the most vulnerable—those who are poor, are outsiders, are minorities, or those who do not have an equal voice in decision-making. Often women stand to lose the most because they are not generally the decision-makers in the community, and their interests may be ignored when land is formalized or there is a decision to formalize it or not.

For both women’s land rights and community land rights, titling may not be a sufficient solution to a lack of secure tenure. Both the debate on women’s land rights and the one on community land rights highlight that the mere issue of land titling does not cover the implicit diversity of land rights. In fact, “instead of increasing legal certainty, individual titling could become a source of conflict and legal insecurity if it conflicts with customary rules regarding tenure, for instance as regards the communal ownership of land” (De Schutter 2011: 269). 1

(2) Titling of customary land, which is driven by the community for the benefit of the community may be very different. Part of the answer to whether it is good or bad for individual men and women in the community will be dependent on the definition of who is a member of the community. For example, women who marry into a community and use community land for the benefit of their families may still not be considered a member of the community and have no decision-making power. They may lose their rights to the land they use, even if the community, rather than the government, initiates the titling process. As well, if temporary users of the land (herders or wood gatherers, for example) are not considered community members, they too may lose their rights to use the land.

(3) Tenure security can be safeguarded under various approaches that make clear the rights of land users and owners: formal titles; clear, long-term rental contracts; reliable lease agreements; or formal recognition of customary and legitimate informal rights, with accessible and effective dispute mechanisms.2 Formal recognition of customary land is different from titling of customary land. Customary tenure regimes that are formally recognized by governments in law, hold a set of rights within a regulatory framework. For example, formally recognized rights to customary land may give the users of that land the right to sell products from the land but not the land itself. Generally the group that has formal recognition of customary land is given the right to manage the land within a set of guidelines. Customary land may be formally recognized without providing individual titles or even documenting individual land rights holders or community members.

Formal recognition of customary land without titling that land can provide protection for the community as a whole. The issue then becomes what governance structure is in place to govern the management of the land and who is included and who is excluded from land governance. Again, those who are not represented risk losing rights to land, but some of those risks can be handled within the legal regulations developed under the formal recognition.

Some 18% of the world’s land is formally recognized as either owned by or designated for indigenous peoples and communities. 3 However, studies estimate that while a significant portion of the world’s land is held under collective tenure, large areas of that land are not formally or legally recognized. While it has been estimated that up to 60% of sub-Saharan Africa’s land is subject to customary tenure, according to a study of 19 countries in the region, only 13% of the land is designated for indigenous peoples and local communities and only 3% of the land is legally owned under community-based tenure regimes. 4

There are a number of reasons why protecting collective tenure is important for sustainable development and why it is gaining traction in development practice. The understanding of local realities of land and resource use and management often embodied in collective tenure systems can result in efficient use of resources. Research provides evidence that where they are able to manage the land, indigenous peoples and local communities are good stewards of the land and natural resources.

Similarly, formal recognition of collective tenure over land can help communities attain food security and increase their income. When rights are formalized and therefore perceived by the community as more secure, the community is encouraged to invest in the long-term sustainability of the land, thus increasing its productivity. 5

Finally, as natural resources are being increasingly “commoditized,” 6 it becomes more important for communities to clarify existing property rights, especially where ownership rights are not easily identified. The growing demand for food and natural resources worldwide has led to increased commercial pressures on land, often resulting in negative impacts for all affected communities. 7 Expropriation by the state for commercial reasons and large-scale land acquisition can dispossess entire communities. The protection of collective rights has the potential to give communities a legal basis to defend their rights in the face of outside pressures. 8 Similarly, formally recognizing customary land rights provides a degree of legal protection for those who risk losing their rights in the transition to privatized rights.

(4) One last issue to consider in titling customary land. Arable land under customary tenure is most often allocated by customary authorities to be used and managed individually or by households. Some arable land may be used communally, though this is not common. Because customary arable land is usually allocated to households, many of the gender issues that arise in this context are similar to those that apply to privately-held arable land, titling land in the name of the head of household, for example. This similarity is not always recognized in law, thus creating a legal gap—family laws, which provide for joint ownership may exclude land held under customary tenure.

Notes:

De Schutter O. (2011) ‘How not to think of land-grabbing: three critiques of large-scale investments in farmland’, Journal of Peasant Studies 38, 249. FAO, “Governing Land for Women and Men: A Technical Guide to Support the Achievement of Responsible Gender-Equitable Governance Land Tenure,” 1 GOVERNANCE OF TENURE TECHNICAL GUIDE (FAO 2013).
Landmark: Global Platform of Indigenous and Community Lands.
RRI. 2015. Who Owns the World’s Land? A Global Baseline of Formally Recognized Indigenous and Community Land Rights. Washington, D.C.: RRI.
IFAD, 2006. Community-based natural resource management How knowledge is managed, disseminated and used. In Brazil, for example, a group which gained legal title to communal land invested in sustainably harvesting acai palm, which had almost disappeared from the region. See RRI 2015. IRF 2015: Securing Indigenous and Community Rights in the Future We Want.
Cotula, L. 2015. Investment treaties, land rights and a shrinking planet.
Knapman, C., and P. Sutz. 2016. Reconsidering approaches to women’s land rights in sub-Saharan Africa. IIED.
Brinkhurst, M. 2015. Using the Law for Resource Justice. IIED.

Economic Development (1)

These articles do not go as far as you would like (or we would like), but they do talk about women’s economic empowerment related to women’s land rights. You will see that many of the studies are related to formalizing rights—partially that is true because it’s a good before and after situation for quantitative research. Similarly, these are summaries of the articles, but the full article can be obtained by going to the link at the bottom of the page.

Environment (1)

Here is a link to four summaries of articles that I think will be useful. The link will take you to a summary of the study on the research consortium website. At the bottom of the page there will be a link to the full article. Most of what I have seen has to do with soil conservation (including fallowing). I suppose one reason is that it is easily measured.  

Here they are:

Category: Environment

Inheritance (1)

No. The right to renounce one’s inheritance is universally recognized throughout the world. In most cases heirs renounce their inheritance in order to avoid unwanted expenses, responsibilities, or debts that are associated with the estate. A review of literature on the issue of renunciation found that the right to renounce a right to inherit property is an important safeguard against unwanted debt in France1, Germany2, Lithuania3, Italy4, the Czech Republic5, Spain6, all of Latin America7, Burkina Faso and India8, Israel and Turkey9, Tunisia10, Jordan11, and many other countries.

The majority of countries that have addressed renunciation have done so by employing procedural safeguards. Many of these are countries where Islamic law is recognized as the formal law of the land, but customary law, which is often more restrictive for women than Islamic law, is also practiced.

The courts that administer the division of inheritance in Palestine have introduced procedures to protect women’s inheritance rights and address social pressures on women to renounce their rights. Under that law, acts to renounce rights must be registered and witnessed. The inheritance process also mandates periods for reflection to safeguard, women from urgent family and social pressure. Where the inheritance of land is concerned, the law requires that women must first register their rights before they may renounce them.

Similarly, in Jordan, amendments to the Personal Status Code in 2010 led to an instruction to offer protection to women’s inheritance rights. The instruction provides a three-month period for reflection after the division of inheritance rights during which heirs cannot renounce rights, except in special circumstances. If a woman would like to renounce her inheritance rights after that time, the court must first explain to her the consequences of the renunciation and, in the case of immovable property such as land, the property must first be registered in the name of the heirs before it can be renounced and transferred.12

In Italy, a public notice of renunciation is required. When a successor renounces her inheritance, she must give public notice of her refusal before a Notary Public or a public officer, since the act of renouncing an inheritance cannot be made in a private document.13

In many Arabic countries, land inherited by women can be exchanged or renounced for cash.14

Notes:

Rollot, Catherine, 2011. “Death & Debt: More French Heirs Renounce Succession of Departed, Indebted Parents.”
Siegwart, Holgar, 2013. “How to Disclaim an Inheritance in Germany.”
Government of Lithuania, 2001. The Law of Succession.
Italian Inheritance.
Government of Czech Republic, Civil Code, Articles 463-468.
Walton, Clifford Stevens, 2003. The Civil Law in Spain and Spanish America.
Diana Deere, Carmen and Magdalena Leon, 2001. Empowering Women: Land and Property Rights in Latin America.
FAO. Women’s Rights to Land and Other Natural Resources.
Layis, Aharon. Women and Islamic Law in a Non-Muslim State.
10 Ben Salem, Lilia. Tunisia, in Women’s Rights in the Middle East and North Africa: Progress Amid Resistance, ed. Sanja Kelly and Julia Breslin (New York, NY: Freedom House; Lanham, MD: Rowman & Littlefield, 2010).
11 World Bank, 2013.  Jordan Country Gender Assessment. Economic Participation, Agency And Access To Justice In Jordan; Poverty Reduction And Economic Management Department, Middle East And North Africa.
12 Id.
13 Italian Inheritance.
14 Sait, M Siraj and Tempra, Ombretta, 2015.  Land Fragmentation in Muslim Communities: Traditional Challenges And Innovative Consolidation Approaches, University Of East London, United Kingdom.

 

Joint Tenure (1)

No. Very few countries have universal joint tenure, which means that all property brought into marriage or acquired in marriage in any manner is jointly held. A presumption of joint tenure for married couples means that there is a presumption that a married couple holds property acquired during marriage jointly. Often there are exceptions for property that is inherited or property that is gifted to one of the married couple. Thus, in most cases, even when married couples have joint tenure, ancestral land is excluded.

Some countries allow separate property to become joint property if the non-owner contributes to the value of the property (pays for improvements, for example).

Land Registration (2)

While this issue is a concern in many urban and rural settings, there seems to be precious little “how to” information available. What does exist can provide a roadmap, but the details will be dependent on the goal of your project, the current law, and local and national political will.

The most recent research on the topic that I could find comes out of South Africa. I would recommend a book and an article as a good starting place. The book is, UNTITLED: Securing Land Tenure in Urban and Rural South Africa, edited by Donna Hornby, Rosalie Kingwill, Lauren Royston, and Ben Cousins, and published in 2017.

The article is, Land Rights Adjudication: Developing Principles and Processes for ESTA and Labour Tenant Right ’ Holders, and was published in June 2017. The article was written by Dr. Rosalie Kingwill for Association for Rural Advancement (AFRA).

The gist of the idea is this:

• Collect evidence from the ground up to understand the local situation/norms of land use.
• Develop standardized evidentiary principles based on current norms where ‘like units’ can be compared with ‘like units’ across varied tenure landscapes to allow for local variation and diversity.
• Develop a system of adjudication with clear-cut principles against which to test the legality or veracity of individual land rights by authoritative means.

The registry for “off-register” rights could be separate or a part of the main land registry depending on the existing system. Namibia has passed an act designed to create new forms of title to immovable property and to create a register for these forms of title. The system is expected to operate parallel to the existing registration system. Admittedly, including non-ownership rights in an existing registry or creating a new registry will be a slow and difficult process.

Gender Specific Issues

Anytime a census of rights is taken, women are at risk. Women, who use land and depend on it may nonetheless not be considered to have a right to that land. Thus, the evidence collectors will need to be aware that they are collecting information on who has what interest in which land, and that this information should be collected from every adult member in a household, not only the head of household. In addition, a focused effort will be required to ensure that women, as well as men, are provided notice and receive ongoing information and communication throughout the process. Including women often requires separate meetings or other accommodations.

As well, when registering of rights/interests occurs, there is usually a perception of increased value of the land. Where there is a significant power differential between men and women, women can lose their right to use the land, once the value of that land is increased. It will be important to monitor the effect of the information gathering and to communicate with the community about its purpose and the hoped for outcome.

As you can imagine, there are no easy answers to this question, and people will disagree. Here are a few thoughts.

(1) I do think that very often when titling of customary land is initiated by the government and not by the community, the goal is often to get land into the market or to make land easier to acquire (through compulsory acquisition) by the government and by purchasers and lessees. Communities themselves will object to titling of their land if they believe they need to be protected from the government not by the government. If titling is a pre-cursor to customary land entering the market, then I do think there is a real possibility of it being a threat to women’s and men’s rights to their customary land. The threat will be greatest for the most vulnerable—those who are poor, are outsiders, are minorities, or those who do not have an equal voice in decision-making. Often women stand to lose the most because they are not generally the decision-makers in the community, and their interests may be ignored when land is formalized or there is a decision to formalize it or not.

For both women’s land rights and community land rights, titling may not be a sufficient solution to a lack of secure tenure. Both the debate on women’s land rights and the one on community land rights highlight that the mere issue of land titling does not cover the implicit diversity of land rights. In fact, “instead of increasing legal certainty, individual titling could become a source of conflict and legal insecurity if it conflicts with customary rules regarding tenure, for instance as regards the communal ownership of land” (De Schutter 2011: 269). 1

(2) Titling of customary land, which is driven by the community for the benefit of the community may be very different. Part of the answer to whether it is good or bad for individual men and women in the community will be dependent on the definition of who is a member of the community. For example, women who marry into a community and use community land for the benefit of their families may still not be considered a member of the community and have no decision-making power. They may lose their rights to the land they use, even if the community, rather than the government, initiates the titling process. As well, if temporary users of the land (herders or wood gatherers, for example) are not considered community members, they too may lose their rights to use the land.

(3) Tenure security can be safeguarded under various approaches that make clear the rights of land users and owners: formal titles; clear, long-term rental contracts; reliable lease agreements; or formal recognition of customary and legitimate informal rights, with accessible and effective dispute mechanisms.2 Formal recognition of customary land is different from titling of customary land. Customary tenure regimes that are formally recognized by governments in law, hold a set of rights within a regulatory framework. For example, formally recognized rights to customary land may give the users of that land the right to sell products from the land but not the land itself. Generally the group that has formal recognition of customary land is given the right to manage the land within a set of guidelines. Customary land may be formally recognized without providing individual titles or even documenting individual land rights holders or community members.

Formal recognition of customary land without titling that land can provide protection for the community as a whole. The issue then becomes what governance structure is in place to govern the management of the land and who is included and who is excluded from land governance. Again, those who are not represented risk losing rights to land, but some of those risks can be handled within the legal regulations developed under the formal recognition.

Some 18% of the world’s land is formally recognized as either owned by or designated for indigenous peoples and communities. 3 However, studies estimate that while a significant portion of the world’s land is held under collective tenure, large areas of that land are not formally or legally recognized. While it has been estimated that up to 60% of sub-Saharan Africa’s land is subject to customary tenure, according to a study of 19 countries in the region, only 13% of the land is designated for indigenous peoples and local communities and only 3% of the land is legally owned under community-based tenure regimes. 4

There are a number of reasons why protecting collective tenure is important for sustainable development and why it is gaining traction in development practice. The understanding of local realities of land and resource use and management often embodied in collective tenure systems can result in efficient use of resources. Research provides evidence that where they are able to manage the land, indigenous peoples and local communities are good stewards of the land and natural resources.

Similarly, formal recognition of collective tenure over land can help communities attain food security and increase their income. When rights are formalized and therefore perceived by the community as more secure, the community is encouraged to invest in the long-term sustainability of the land, thus increasing its productivity. 5

Finally, as natural resources are being increasingly “commoditized,” 6 it becomes more important for communities to clarify existing property rights, especially where ownership rights are not easily identified. The growing demand for food and natural resources worldwide has led to increased commercial pressures on land, often resulting in negative impacts for all affected communities. 7 Expropriation by the state for commercial reasons and large-scale land acquisition can dispossess entire communities. The protection of collective rights has the potential to give communities a legal basis to defend their rights in the face of outside pressures. 8 Similarly, formally recognizing customary land rights provides a degree of legal protection for those who risk losing their rights in the transition to privatized rights.

(4) One last issue to consider in titling customary land. Arable land under customary tenure is most often allocated by customary authorities to be used and managed individually or by households. Some arable land may be used communally, though this is not common. Because customary arable land is usually allocated to households, many of the gender issues that arise in this context are similar to those that apply to privately-held arable land, titling land in the name of the head of household, for example. This similarity is not always recognized in law, thus creating a legal gap—family laws, which provide for joint ownership may exclude land held under customary tenure.

Notes:

De Schutter O. (2011) ‘How not to think of land-grabbing: three critiques of large-scale investments in farmland’, Journal of Peasant Studies 38, 249. FAO, “Governing Land for Women and Men: A Technical Guide to Support the Achievement of Responsible Gender-Equitable Governance Land Tenure,” 1 GOVERNANCE OF TENURE TECHNICAL GUIDE (FAO 2013).
Landmark: Global Platform of Indigenous and Community Lands.
RRI. 2015. Who Owns the World’s Land? A Global Baseline of Formally Recognized Indigenous and Community Land Rights. Washington, D.C.: RRI.
IFAD, 2006. Community-based natural resource management How knowledge is managed, disseminated and used. In Brazil, for example, a group which gained legal title to communal land invested in sustainably harvesting acai palm, which had almost disappeared from the region. See RRI 2015. IRF 2015: Securing Indigenous and Community Rights in the Future We Want.
Cotula, L. 2015. Investment treaties, land rights and a shrinking planet.
Knapman, C., and P. Sutz. 2016. Reconsidering approaches to women’s land rights in sub-Saharan Africa. IIED.
Brinkhurst, M. 2015. Using the Law for Resource Justice. IIED.

Legal Concepts (4)

This is a big question, but fortunately, much has been written about gender inequality and land rights in Uganda. There are two documents that I think will be useful. First, is an overview of the law and practice related to women’s land rights—a practice guide— Women’s Land Rights in Uganda and the second is the Ugandan Land Policy.

In brief, the practice guide points out some of the legal issues that continue to limit women’s rights to land (for example a weak inheritance law) and customary law practices that maintain inequality between men and women.

What can be done about it?  Uganda has a very gender positive Land Policy that suggests a complete understanding of the issues facing women. If the Land Policy were to be implemented, gender equality in land rights would be much more likely.

With tenancy in common, each person holds (owns) a portion of the whole piece of land, although that portion is not demarcated. If a husband and wife hold land as tenants in common and one of them dies without leaving a will, his/her share will be part of his/her estate and will be distributed to his/her heirs. When land is held in common, the owners have a right to do what they want with their portion of the land. For example, a portion of the land can be sold to someone outside of the tenancy in common.

In contrast, joint tenure means that more than one person holds (owns) the whole of the property. Land held in joint tenure can only be acted on with the consent of all the owners, as each owner is acting for all owners on the whole property. For example, for land to be disposed of, all the joint owners must agree to do so. While still alive, a joint owner may transfer his/her interest to all the other owners, but to no other person. In some property systems, if a joint owner dies, his/her interest in the land will vest in the surviving owner(s). This is called the right of survivorship. In other places, if one person dies, the land automatically becomes tenancy in common, and the land is divided among all the owners with the deceased owner’s land going to his/her heirs.

Note: Joint tenure can also be called joint ownership. Tenancy in common can also be called common tenure or common ownership.

Category: Legal Concepts

No. The right to renounce one’s inheritance is universally recognized throughout the world. In most cases heirs renounce their inheritance in order to avoid unwanted expenses, responsibilities, or debts that are associated with the estate. A review of literature on the issue of renunciation found that the right to renounce a right to inherit property is an important safeguard against unwanted debt in France1, Germany2, Lithuania3, Italy4, the Czech Republic5, Spain6, all of Latin America7, Burkina Faso and India8, Israel and Turkey9, Tunisia10, Jordan11, and many other countries.

The majority of countries that have addressed renunciation have done so by employing procedural safeguards. Many of these are countries where Islamic law is recognized as the formal law of the land, but customary law, which is often more restrictive for women than Islamic law, is also practiced.

The courts that administer the division of inheritance in Palestine have introduced procedures to protect women’s inheritance rights and address social pressures on women to renounce their rights. Under that law, acts to renounce rights must be registered and witnessed. The inheritance process also mandates periods for reflection to safeguard, women from urgent family and social pressure. Where the inheritance of land is concerned, the law requires that women must first register their rights before they may renounce them.

Similarly, in Jordan, amendments to the Personal Status Code in 2010 led to an instruction to offer protection to women’s inheritance rights. The instruction provides a three-month period for reflection after the division of inheritance rights during which heirs cannot renounce rights, except in special circumstances. If a woman would like to renounce her inheritance rights after that time, the court must first explain to her the consequences of the renunciation and, in the case of immovable property such as land, the property must first be registered in the name of the heirs before it can be renounced and transferred.12

In Italy, a public notice of renunciation is required. When a successor renounces her inheritance, she must give public notice of her refusal before a Notary Public or a public officer, since the act of renouncing an inheritance cannot be made in a private document.13

In many Arabic countries, land inherited by women can be exchanged or renounced for cash.14

Notes:

Rollot, Catherine, 2011. “Death & Debt: More French Heirs Renounce Succession of Departed, Indebted Parents.”
Siegwart, Holgar, 2013. “How to Disclaim an Inheritance in Germany.”
Government of Lithuania, 2001. The Law of Succession.
Italian Inheritance.
Government of Czech Republic, Civil Code, Articles 463-468.
Walton, Clifford Stevens, 2003. The Civil Law in Spain and Spanish America.
Diana Deere, Carmen and Magdalena Leon, 2001. Empowering Women: Land and Property Rights in Latin America.
FAO. Women’s Rights to Land and Other Natural Resources.
Layis, Aharon. Women and Islamic Law in a Non-Muslim State.
10 Ben Salem, Lilia. Tunisia, in Women’s Rights in the Middle East and North Africa: Progress Amid Resistance, ed. Sanja Kelly and Julia Breslin (New York, NY: Freedom House; Lanham, MD: Rowman & Littlefield, 2010).
11 World Bank, 2013.  Jordan Country Gender Assessment. Economic Participation, Agency And Access To Justice In Jordan; Poverty Reduction And Economic Management Department, Middle East And North Africa.
12 Id.
13 Italian Inheritance.
14 Sait, M Siraj and Tempra, Ombretta, 2015.  Land Fragmentation in Muslim Communities: Traditional Challenges And Innovative Consolidation Approaches, University Of East London, United Kingdom.

 

No. Very few countries have universal joint tenure, which means that all property brought into marriage or acquired in marriage in any manner is jointly held. A presumption of joint tenure for married couples means that there is a presumption that a married couple holds property acquired during marriage jointly. Often there are exceptions for property that is inherited or property that is gifted to one of the married couple. Thus, in most cases, even when married couples have joint tenure, ancestral land is excluded.

Some countries allow separate property to become joint property if the non-owner contributes to the value of the property (pays for improvements, for example).

Renting & Leasing (1)

While this issue is a concern in many urban and rural settings, there seems to be precious little “how to” information available. What does exist can provide a roadmap, but the details will be dependent on the goal of your project, the current law, and local and national political will.

The most recent research on the topic that I could find comes out of South Africa. I would recommend a book and an article as a good starting place. The book is, UNTITLED: Securing Land Tenure in Urban and Rural South Africa, edited by Donna Hornby, Rosalie Kingwill, Lauren Royston, and Ben Cousins, and published in 2017.

The article is, Land Rights Adjudication: Developing Principles and Processes for ESTA and Labour Tenant Right ’ Holders, and was published in June 2017. The article was written by Dr. Rosalie Kingwill for Association for Rural Advancement (AFRA).

The gist of the idea is this:

• Collect evidence from the ground up to understand the local situation/norms of land use.
• Develop standardized evidentiary principles based on current norms where ‘like units’ can be compared with ‘like units’ across varied tenure landscapes to allow for local variation and diversity.
• Develop a system of adjudication with clear-cut principles against which to test the legality or veracity of individual land rights by authoritative means.

The registry for “off-register” rights could be separate or a part of the main land registry depending on the existing system. Namibia has passed an act designed to create new forms of title to immovable property and to create a register for these forms of title. The system is expected to operate parallel to the existing registration system. Admittedly, including non-ownership rights in an existing registry or creating a new registry will be a slow and difficult process.

Gender Specific Issues

Anytime a census of rights is taken, women are at risk. Women, who use land and depend on it may nonetheless not be considered to have a right to that land. Thus, the evidence collectors will need to be aware that they are collecting information on who has what interest in which land, and that this information should be collected from every adult member in a household, not only the head of household. In addition, a focused effort will be required to ensure that women, as well as men, are provided notice and receive ongoing information and communication throughout the process. Including women often requires separate meetings or other accommodations.

As well, when registering of rights/interests occurs, there is usually a perception of increased value of the land. Where there is a significant power differential between men and women, women can lose their right to use the land, once the value of that land is increased. It will be important to monitor the effect of the information gathering and to communicate with the community about its purpose and the hoped for outcome.

Tanzania (1)

While this issue is a concern in many urban and rural settings, there seems to be precious little “how to” information available. What does exist can provide a roadmap, but the details will be dependent on the goal of your project, the current law, and local and national political will.

The most recent research on the topic that I could find comes out of South Africa. I would recommend a book and an article as a good starting place. The book is, UNTITLED: Securing Land Tenure in Urban and Rural South Africa, edited by Donna Hornby, Rosalie Kingwill, Lauren Royston, and Ben Cousins, and published in 2017.

The article is, Land Rights Adjudication: Developing Principles and Processes for ESTA and Labour Tenant Right ’ Holders, and was published in June 2017. The article was written by Dr. Rosalie Kingwill for Association for Rural Advancement (AFRA).

The gist of the idea is this:

• Collect evidence from the ground up to understand the local situation/norms of land use.
• Develop standardized evidentiary principles based on current norms where ‘like units’ can be compared with ‘like units’ across varied tenure landscapes to allow for local variation and diversity.
• Develop a system of adjudication with clear-cut principles against which to test the legality or veracity of individual land rights by authoritative means.

The registry for “off-register” rights could be separate or a part of the main land registry depending on the existing system. Namibia has passed an act designed to create new forms of title to immovable property and to create a register for these forms of title. The system is expected to operate parallel to the existing registration system. Admittedly, including non-ownership rights in an existing registry or creating a new registry will be a slow and difficult process.

Gender Specific Issues

Anytime a census of rights is taken, women are at risk. Women, who use land and depend on it may nonetheless not be considered to have a right to that land. Thus, the evidence collectors will need to be aware that they are collecting information on who has what interest in which land, and that this information should be collected from every adult member in a household, not only the head of household. In addition, a focused effort will be required to ensure that women, as well as men, are provided notice and receive ongoing information and communication throughout the process. Including women often requires separate meetings or other accommodations.

As well, when registering of rights/interests occurs, there is usually a perception of increased value of the land. Where there is a significant power differential between men and women, women can lose their right to use the land, once the value of that land is increased. It will be important to monitor the effect of the information gathering and to communicate with the community about its purpose and the hoped for outcome.

Uganda (1)

This is a big question, but fortunately, much has been written about gender inequality and land rights in Uganda. There are two documents that I think will be useful. First, is an overview of the law and practice related to women’s land rights—a practice guide— Women’s Land Rights in Uganda and the second is the Ugandan Land Policy.

In brief, the practice guide points out some of the legal issues that continue to limit women’s rights to land (for example a weak inheritance law) and customary law practices that maintain inequality between men and women.

What can be done about it?  Uganda has a very gender positive Land Policy that suggests a complete understanding of the issues facing women. If the Land Policy were to be implemented, gender equality in land rights would be much more likely.

Urban Land & Property (1)

While this issue is a concern in many urban and rural settings, there seems to be precious little “how to” information available. What does exist can provide a roadmap, but the details will be dependent on the goal of your project, the current law, and local and national political will.

The most recent research on the topic that I could find comes out of South Africa. I would recommend a book and an article as a good starting place. The book is, UNTITLED: Securing Land Tenure in Urban and Rural South Africa, edited by Donna Hornby, Rosalie Kingwill, Lauren Royston, and Ben Cousins, and published in 2017.

The article is, Land Rights Adjudication: Developing Principles and Processes for ESTA and Labour Tenant Right ’ Holders, and was published in June 2017. The article was written by Dr. Rosalie Kingwill for Association for Rural Advancement (AFRA).

The gist of the idea is this:

• Collect evidence from the ground up to understand the local situation/norms of land use.
• Develop standardized evidentiary principles based on current norms where ‘like units’ can be compared with ‘like units’ across varied tenure landscapes to allow for local variation and diversity.
• Develop a system of adjudication with clear-cut principles against which to test the legality or veracity of individual land rights by authoritative means.

The registry for “off-register” rights could be separate or a part of the main land registry depending on the existing system. Namibia has passed an act designed to create new forms of title to immovable property and to create a register for these forms of title. The system is expected to operate parallel to the existing registration system. Admittedly, including non-ownership rights in an existing registry or creating a new registry will be a slow and difficult process.

Gender Specific Issues

Anytime a census of rights is taken, women are at risk. Women, who use land and depend on it may nonetheless not be considered to have a right to that land. Thus, the evidence collectors will need to be aware that they are collecting information on who has what interest in which land, and that this information should be collected from every adult member in a household, not only the head of household. In addition, a focused effort will be required to ensure that women, as well as men, are provided notice and receive ongoing information and communication throughout the process. Including women often requires separate meetings or other accommodations.

As well, when registering of rights/interests occurs, there is usually a perception of increased value of the land. Where there is a significant power differential between men and women, women can lose their right to use the land, once the value of that land is increased. It will be important to monitor the effect of the information gathering and to communicate with the community about its purpose and the hoped for outcome.

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